2020 Supreme(Jhk) 1031

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Vimal Kumar Tulsyan @ Vimal Kumar Tylsyan - Petitioner
Versus
The Union of India through the CBI - Opposite Party
Cr. Rev. No. 1717 of 2018 With Cr. Rev. No. 23 of 2019 With Cr. Rev. No. 1709 of 2018
Decided On : 03-03-2020

The concept of alter ego is not a substitute to the concept of vicarious liability and in certain enactments the directors have been made vicariously liable for the acts and omissions of the company by way of specific provisions made to that effect and in absence of any such corresponding provision under Indian Penal Code, the concept of vicarious liability is alien to Indian Penal Code.

Headnote:

JUDGEMENT : 1. Heard Mr. M. A. Niyazi, learned counsel appearing on behalf of the petitioners alongwith Mr. Shailesh Kr Singh and Mr. Kumar Basant, Advocates. 2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the opposite party- Central Bureau of Investigation. 3. All the three cases arise out of the common order whereby the petition for discharge filed by the petitioners under Section 239 Cr.P.C. has been rejected and consequently, charge has been framed against them vide order dated 20.11.2018 under Section 120B of the Indian Penal Code read with Sections 420, 409, 468 and 471 of Indian Penal Code.

Fact of the Case:

Charge-sheet dated 31.10.2012 was filed under Section 120B read with Sections 420, 409, 468 and 471 of the Indian Penal Code against the company, namely, Auroma Coke Limited ( hereinafter referred to as the company ) and its four directors. Vide order dated 09.01.2014 cognizance of the offence was taken by the learned court below under the aforesaid sections. The F.I.R. was filed on the basis of some so-called reliable source information that the unknown officials of B.C.C.L and the petitioners entered into a criminal conspiracy amongst themselves during the period 2008 to 2011 and in furtherance thereof, the said company through its directors was allotted linkage quota of coal under fuel supply agreement (hereinafter referred to as FSA) from B.C.C.L. for compulsory utilization in its plant. It was also alleged that the company lifted coal from different collieries of B.C.C.L., Dhanbad and sold the same in black market at premium causing loss to B.C.C.L. The F.I.R. also referred to a joint surprise check which was carried in the plant premises of the company on 18.03.2011.

Finding of the Court:

48. In view of the aforesaid findings at this stage, this court is of the considered view that prima facie case to constitute an offence under Section 120B read with Sections 420, 409, 468 and 471 of IPC is made out against the petitioner company and the director namely, Prashant Tulsyan and accordingly, the impugned order of the learned court below refusing to discharge them does not call for any interference. Cr. Rev. No. 23 of 2019 is hereby dismissed.

Issues: Whether the petitioners are entitled to be discharged from the charges framed against them under Section 120B read with Sections 420, 409, 468 and 471 of the Indian Penal Code.

Ratio Decidendi: 43. The learned counsel for the petitioners has argued that so far as the directors are concerned, there is no overt act alleged against the directors of the company and accordingly, in such circumstances, no vicarious liability can be imputed against them. Shri Prashant Tulsyan was the signatory to the Fuel Supply Agreement dated 31.07.2008 (Annexure-8). As per the agreement itself, Clause 19.8 clearly indicates that Shri Prashant Tulsyan plant in-charge or his representative(s) nominated for the purpose, shall be authorized to act for and on behalf of the purchaser. Admittedly, Shri Prashant Tulsyan is one of the directors of the petitioner company. From the perusal of the Fuel Supply Agreement, this Court finds that Shri Prashant Tulsyan was apparently the face of the petitioner company made responsible to interact and deal with the B.C.C.L. for the transactions in question or through his representative nominated for the purpose. Under the FSA there is an obligation cast upon the petitioner company represented through Shri Prashant Tulsyan and an obligation was also casted upon Shri Prashant Tulsyan who was made responsible to interact and deal with the B.C.C.L. for the transactions in question and there is a clear obligation to use the FSA coal in the unit of the petitioner company. It was this obligation of the petitioner company as well as Shri Prashant Tulsyan which has been alleged to have been violated and there is an allegation of diversion of FSA coal and its sale in black market. There is also allegation of falsification of records to show production and sale of FSA coal and mismatch in physical stock and stock in books has been alleged. Thus this court is of the considered view at this stage that there is enough material to prima facie allege commission of offence by Shri Prashant Tulsyan, one of the directors, in conspiracy with the petitioner company and the criminal intent of Shri Prashant Tulsyan for commission of alleged offence would also be attributable to the petitioner company by applying the principles of “alter ego”.

Final Decision: 49. The above findings/observations have been made only for the purposes of considering the point of discharge of the petitioners which was rejected by the learned court below by the impugned order in the light of the arguments advanced by the learned counsel for the parties. It is made clear that any observation made by this Court will not prejudice the case of either parties before the learned court below at the stage of trial. 50. The learned counsel for the parties, at this stage, submit that considering the fact that it is an old matter, the trial may be expedited. They also submit that both the sides would fully co-operate with the trial. 51. Considering the submissions made, the learned court below is directed to make all endeavor for expeditious disposal of the case. 52. Let a copy of this order be communicated to the learned court below through “FAX”.